CONSENTING TO SEX

Who you have sex with is a matter of personal choice, regardless of gender. Gay sex is not against the law.

If you want to have sex with someone, you both have to agree (consent) and the law places some restrictions on the age of sexual partners.

‘Consent'

Consent means ‘free agreement'. A failure to say no cannot be taken as consent. It is not ‘free agreement' if the person has sex because they are afraid, asleep, unconscious, or too drunk or drug affected to agree freely, or they don't understand what is happening. Having sex with someone without their consent is an offence (see ‘Violence').

Age of consent

In Victoria the law about under-age sex is the same for both men and women and for gay and heterosexual sex.

If you are:

under 10 - no one is allowed to have sex with you (even if you consent)

between the ages of 10 and 16 - a person is not allowed to have sex with you if they are more than two years older than you (even if you consent) unless it was reasonable for them to believe that you were 16 or older at the time

aged 16 or 17 - a person is not allowed to have sex with you if you are under their care, supervision or authority (even if you consent). Your consent is only a defence if they believed you were 18 or older.

Having sex with a young person who is under these age restrictions is an offence and can lead to a long jail sentence.

Having sex interstate

The age of consent for gay sex depends on what state you are in and what gender you are. This table shows the different ages for female-to-female sex, for male-to-male sex and for heterosexual sex.

M2M

F2F

H

ACT, NSW, NT and WA

16

16

16

SA and TAS

17

17

17

QLD

16/18*

16/18*

16/18*

*Queensland law specifies an age of consent of 18 for anal sex and 16 for all other sexual activities. Some states may, like Victoria, may allow sex at a younger age with conditions. For example, if your partner is no more than two years older than you, as discussed above. Check the law in that state.

CONSENT AND HIV/AIDS

It is possible to be charged with a criminal offence, even if sex is consensual and otherwise against the law, if one of the partners knowingly or recklessly infects the other with an infectious disease. See ‘Health'.

SEXUAL HARASSMENT

‘Sexual harassment' is unlawful in the workplace and some other areas (see ‘Discrimination').

Sexual harassment is not a criminal offence in Victoria, unless it involves inappropriate touching or contact, or threats of these, and this would amount to an assault. If the behaviour is persistent and intimidating it may be seen as ‘stalking' and you may be able to apply for an intervention order to stop this behaviour. See ‘Violence'.

SEXUAL BEHAVIOUR IN PUBLIC

Behaving in an ‘indecent, offensive or insulting manner' is an offence under theSummary Offences Act 1966 (Vic).

This law penalises some sexual activity in public, though not just expressions of affection. It applies equally to all people. If you have sex in public, when and where someone could see you and take offence, you may be charged with 'offensive behaviour'.

If the police threatened to charge you with ‘offensive behaviour in public' for holding hands or kissing, they would be unlawfully discriminating against you, since same-sex affection is now accepted. You could probably take action against the police for doing so. (See ‘Discrimination' and ‘Dealing with the police').

BEATS

Most men using beats never encounter the police. If you do, however, they could charge you with ‘offensive behaviour in public'.

The legal meaning of offensive behaviour was established by the Supreme Court in 1961. ‘Offensive' means potentially offensive - no-one needs to have been offended. But to be illegal, the behaviour also has to be easily seen - if it ‘cannot be seen without the observer having to take abnormal or unusual action to observe it', it isn't legally offensive.

In a Northern Territory case in 1987, the Court of Appeal ruled that offensive behaviour has to be known or intended to be visible, rather than just seen by accident. A Victorian court may take the same approach.

The definition of a public place is very wide and would include public toilets. Behaviour that is concealed, however, even in a public place (for example, inside a closed toilet cubicle), is not offensive. Closing the cubicle door doesn't turn a public place into a private place, but sex inside it would not be ‘offensive behaviour in public'.

The laws in other states are more strict and include offences such as ‘wilful exposure'. It is best to know the local laws if using beats interstate

Disclaimer

This information was prepared in 2007 and should not be relied upon as up to date or accurate.

For specific advice we encourage you to contact the Fitzroy Legal Service - they have a specific legal advice service for our community.